NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 337 of 2015
1. Mannu Ram Sori S/o Jagdev Sori Aged About 21 Years
2. Manoj Kumar S/o Asha Ram Vishwakarma Aged About 19 Years
Both R/o Village Dumarpani, P.S. Narharpur, District Kanker,
C.G.
—- Appellants
Versus
State Of Chhattisgarh Through P.S. Narharpur, District Kanker,
C.G.
—- Respondent
For Appellant : Shri Nasimuddin Ansari, Advocate.
For Respondent/State : Shri Adil Minhaj, P.L.
Hon’ble Shri Pritinker Diwaker, J
Judgment On Board
08/09/2018
This appeal arises out of the judgment of conviction and order of
sentence dated 9.12.2014 passed by the Special Judge (Atrocities)
North Bastar, Kanker (CG) in Special ST No.17/2014, convicting
accused/appellant No.1 Mannu under Sections 363, 366, 376(2)(g) 6
of Protection of Children from Sexual Offences Act and sentencing him
to undergo RI for two years, RI for five years, RI for 10 years and RI for
10 years plus fine of Rs.10,000/- with default stipulation respectively.
Appellant No.2 Manoj Kumar has been convicted under Sections 363,
366A, 376(2)(g) and 6/17 of POCSO Act and sentenced to undergo RI
for two years, RI for five years, RI for 10 years and RI for 10 years plus
fine of Rs.10,000/- with default stipulation respectively.
02. As per prosecution case, on 16.6.2013 in the night while the
prosecutrix was returning from some marriage function, she was
forcibly taken on motorcycle by three accused persons and subjected
to rape. In the morning of 18.6.2013 the prosecutrix was found
sleeping in the veranda of PW-2 Ratnu Netam. Based on FIR (Ex.P/33)
lodged by PW-12 Jagdish, father of the prosecutrix, on 18.6.2013
offence under Sections 363, 366A, 376, 34 of IPC and 5(L) of POCSO
Act was registered against the accused persons. The prosecutrix was
medically examined by PW-5 Dr. Smt. Sarita Kumeti vide Ex.P/2 and
she noticed abrasion on left lower knee joint, redness with mild
inflammation in labia majora and labia minor, hymen ruptured, blood
like secretion from vagina and one finger inserted into vagina with
tenderness. While framing charges, the trial Judge charged the
accused persons under Sections 363/34, 366A/34, 376/34 and 5(L), 6
of POCSO Act read with 34 of IPC. Accused Manoj and Danu @
Daneshwar were also charged under Section 3(2)(v) of Scheduled
Castes Scheduled Tribes (Prevention of Atrocities) Act read with
Section 34 of IPC.
03. So as to hold the accused persons guilty, the prosecution examined
as many as 15 witnesses. Statements of the accused were also
recorded under Section 313 of Cr.P.C. in which they denied the
circumstances appearing against them in the prosecution case,
pleaded innocence and false implication. In defence, they examined
one witness.
04. The trial Court after hearing counsel for the respective parties and
considering the material available on record, by the impugned
judgment while acquitting accused Danu @ Daneshwar of all the
charges, convicted and sentenced the appellants as mentioned in
para-1 of this judgment.
05. Learned counsel for the appellants submits that the appellants
have been falsely implicated in this offence. He further submits that
there is no legally admissible evidence on record showing the
prosecutrix to be minor on the date of incident and the trial Court
without proper appreciation of evidence on record has recorded
conviction of the appellants by taking into consideration irrelevant
things.
06. On the other hand, supporting the impugned judgment it has
been argued by the State counsel that conviction awarded to the
appellants is based on proper appreciation of the evidence and as
such, there is no scope for interference in the judgment impugned. He
submits that even assuming the prosecutrix to be major, the question
of her consent does not arise because the present is a case of gang
rape.
07. Heard counsel for the respective parties and perused the material
on record.
08. PW-1 prosecutrix while supporting the prosecution case has
stated that on 16.6.2013 while she was returning after attending a
marriage function, the accused persons came to her on a motorcycle
and took her to a village school at Dumarpani where appellant
Mannuram committed rape upon her and in the next morning at 4
Mannu again committed rape upon her. In cross-examination she has
denied all the adverse suggestions and remained firm while accusing
the appellants of commission of the offence.
09. PW-2 Ratnuram is the person in whose veranda the prosecutrix
was found sleeping. However, he has turned hostile. PW-3 Kalyan
Singh has also turned hostile. PW-4 Ku. America is the girl who was
accompanying the prosecutrix at the relevant time. Though she has
turned hostile but has supported the prosecution case in respect of the
appellants forcibly taking the prosecutrix on motorcycle. PW-5 Dr. Smt.
Sarita Kumeti medically examined the prosecutrix on 19.6.2013 vide
Ex.P/2 and noticed abrasion on left lower knee joint, redness with mild
inflammation in labia majora and labia minor, hymen ruptured, blood
like secretion from vagina and one finger inserted into vagina with
tenderness. In her opinion, the prosecutrix could have been subjected
to sexual intercourse.
10. PW-6 Dharmendra Netam has stated that he saw the prosecutrix
with three accused persons who were taking her on their motorcycle
and on the third day of the said incident, while the prosecutrix was
being searched, she was found sleeping in the veranda of PW-2.
Though earlier in respect of seizure Ex.P/12 whereby underwear of
accused Mannu was seized, this witness was declared hostile,
however, on cross-examination by the prosecution on this point, he
supported the prosecution case in this regard as well. PW-7 Ku.
Khileshwari, Patwari, prepared the spot map Ex.P/15. PW-8 Kamlesh
Kumar, Incharge Head Master, produced documents in relation to age
of the prosecutrix wherein her date of birth is mentioned as 27.5.1998.
11. PW-9 Tarkeshwar Patel, SDOP, did part of investigation. PW-10
PRK Singh Tanwar, investigating officer, has duly supported the
prosecution case. PW-11 MS Kange, ASI, assisted in the investigation.
PW-12 Jagdish, father of the prosecutrix, lodged FIR (Ex.P/33) and
gave consent for medical examination of the prosecutrix vide Ex.P/34.
PW-13 Ku. Parveen also states that on the date of incident while she
was returning from marriage function with the prosecutrix and Ku.
America (PW-4), they were stopped by the accused persons and that
the prosecutrix and PW-4 stopped there whereas she left for her
house. She states that two days thereafter she was informed by the
prosecutrix about the incident of rape with her by the accused persons.
PW-14 Dr. Manoj Kumar Sahu medically examined accused/appellant
Mannu and found him capable of performing sexual intercourse. PW-
15 Smt. Sili Thomas, Tehsildar, conducted test identification parade
vide Ex.P/43 where accused/appellant Mannu was duly identified in
both rounds of identification parade by the prosecutrix.
DW-1 Manohar Netam has stated that accused/appellant Mannu
was throughout assisting him in preparing food in the marriage
function. However, in cross-examination he admits that they had
completed their work by 5-6 pm on that day.
12. Close scrutiny of the evidence makes it clear that on 16.6.2013
while the prosecutrix along with PW-4 Ku. America and PW-13 Ku.
Parveen was returning to her house after attending a marriage
function, she was stopped by the accused/appellants, taken on the
motorcycle and then she was subjected to rape by appellant
Mannuram. In her evidence the prosecutrix has categorically stated as
to the manner in which she was taken by the accused/appellants and
then subjected to rape. Her version finds support from the evidence of
PW-4 and PW-13 who were accompanying her at the relevant time.
Furthermore, medical evidence also corroborates the testimony of the
prosecutrix according to which she had suffered abrasion on left lower
knee joint, there was redness with mild inflammation in her labia
majora and labia minor, her hymen was ruptured, there was blood like
secretion from vagina and one finger inserted into vagina with
tenderness. The doctor also opined that she could have been
subjected to sexual intercourse.
13. As regards age of the prosecutrix, the trial Court considering the
statements of PW-12 Jagdish, father of the prosecutrix, PW-1
prosecutrix, PW-8 Kamlesh Kumar, the documentary and medical
evidence adduced in respect thereof, came to the conclusion that the
prosecutrix was below 18 years of age on the date of incident. After
careful examination of the entire evidence, this Court finds no illegality
or infirmity in the finding so recorded by the trial Court.
14. On the basis of aforesaid discussion, this Court is of the opinion
that the prosecution has been successful in proving guilt of the
appellants based on the evidence adduced by it beyond all reasonable
doubt. Being so, conviction of the appellants recorded by the trial Court
is hereby affirmed.
15. In the result, the appeal fails and is, accordingly, dismissed. The
appellants are reported to be in jail, therefore, no further order
regarding their arrest/surrender etc. is required to be passed.
Sd/
(Pritinker Diwaker)
Judge
Khan